Muhlhauser v. State

1 Ohio C.C. (n.s.) 273 | Oh. Circ. Ct. | 1900

Burrows, J.

Upon the argument of this case, our laws for the prevention of cruelty to animals received a large measure of criticism from counsel; not, however, as to the policy or propriety of such laws, but it was charged that these laws had been so carelessly and bunglingly framed as to render their meaning uncertain and their enforcement difficult. Upon a pretty careful examination of our statutes upon this subject we are inclined to think that such criticism is unjust and that these laws were framed with reasonable certainty and can be enforced without any serious difficulty.

To accomplish the end in- view by the Legislature the repression of the brutality of man in his treatment of dumb animals — the use of such general words as “torture” and “torment” were not only proper but unavoidable. But their meaning 'as used in these statutes is specifically defined in Section 3721, which provides:

“The words torment, torture, and cruelty shall be held to include every act, omission or neglect whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue when there is 'a reasonable remedy or relief.”

Section 6951 malees the commission and omission of various specific, acts criminal, and then, in addition to these specific acts, makes it an offense “t'o torture or torment” any animal. Over-driving, overloading, depriving of necessary sustenance, unnecessarily or cruelly beating, needlessly mutilating or killing, keeping in an enclosure without wholesome exercise and change, of air, etc., etc., are all separate offenses, and the complaint for such offenses should specify the acts done or omitted so as to describe and identify the transaction with reasonable certainty; while the prosecutions for torturing or tormenting animals should not only use one or both of these words but should give the acts of omission or cemmission which constitute the torture or torment of the animal, with the allegation that such acts caused unnecessary or unjustifiable pain or suffering to such animal, unless the acts themselves describing the offense necessarily make it evident' that such pain or suffering was caused thereby.

While several of these separate offenses may undoubtedly be charged in the same complaint, they must, however, be separately stated, so that there shall be 'a complete and separate statement of each separate offense.

For ah illustration, let us take the complaint in this case and examine it for the purpose of determining, if we can, what offense or offenses, if any, are properly charged therein. It alleges that on the 6th day of July, 1897, Antoinette Muhlhauser “did unlawfully and willfully torture, torment and deprive of necessary food and sustenance certain -animals, to-wit, five calves, twenty-three sheep and one heifer and two horses, by confining said animals in a certain field there situated for the space of seven days, and did unlawfully and willfully fail to supply said animals, while so as aforesaid then and there confined by her, with a sufficient quantity of good and wholesome food and water.”

More than one offense is attempted to be described, in what I have read, and two more offenses follow in the same sentence which I have not read. So many different offenses are confused and conglomerated in this one charge that it would be impossible to make any distinct offense out of the entire complaint, except by picking out' and putting together phrases here and there, and holding the rest to be surplusage. It is charged that she deprived certain animals of necessary food 'and sustenance for the space of seven days, which constitutes under this statute an offense; but this charge is qualified by the statement that such animals were deprived of food and sustenance by confining them in a certain field and then failing, while they were so confined, to supply them with a sufficient quantity of good and wholesome food and water. Confining or impounding animals and then failing to supply them with sufficient quantity of food and water, and depriving them, of necessary food and sustenance when mot confined or impounded, are distinct offenses. In this case the charge of depriving them of necessary lood and sustenance is merged or submerged in the charge of failing to provide them with sufficient quantity of good and wholesome food and water when they were impounded or confined.

The charge of confining or impounding was not sustained by the proof, and it is doubtful whether it was well charged by the allegation that they were “confined in a certain field.”

There is an attempt to charge cruelty in failing to shear the sheep, and the further charge is attempted to be made that two rams were tortured, but neither of these offenses can be held to be properly charged except by expunging all that precedes these separate charges and connecting each of them with the opening phrase ■“did unlawfully and willfully torture.”

There was no difficulty in making these four separate charges, t'o-wit: That the accused unlawfully deprived certain animals of necessary food and sustenance; that she impounded and confined •certain animals, describing them, for 'a certain time and then failed to supply them with a sufficient quantity of wholesome food and water; that she unlawfully tortured and tormented certain sheep by leaving them unshorn; and that she tortured and tormented two certain rams in the manner described in the complaint.

I make these suggestions not for the purpose of criticising the •complaint in this case, or because it is necessary that anything should be s'aid to supplement the comprehensive opinion of Judge Frazier, but solely for the purpose of promoting, if possible, the proper enforcement of these just and humane laws.

Tuttle & Tuttle and B. L. Hessenmueller, for plaintiff in error. Bosworth & Hammer, for defendant in error.